About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1984
>>
[1984] ZASCA 82
|
|
S v Dyalvane (4/84) [1984] ZASCA 82 (31 August 1984)
/MC
MAPUTSE HEADMAN DYALVANE
- and -
THE STATE VIVIER AJA
.
Case no. 4/84. /MC
IN THE
SUPREME
COURT OF
SOUTH AFRICA (APPELLATE DIVISION)
In the appeal between:
MAPUTSE
HEADMAN DYALVANE
Appellant
- and -
THE
STAT
E Respondent
CORAM
: RABIE CJ, et MILLER, VAN HEERDEN JJA
et
GALGUT, VIVIER AJJA.
HEARD
: 16 August 1984.
DELIVERED:
31 August 1984.
JUDGMENT
VIVIER AJA.
2.
The appellant was convicted by PICKARD J and two assessors in the Supreme
Court of Ciskei of the murder of Joyce Komiki which took
place on the evening of
26 June 1982 at Mdantsane. The court found extenuating circumstances but, this
notwithstanding, the trial
Judge in the exercise of his discretion under sec
277(2) of Act 51 of 1977, decided to impose the death sentence. Arising out of
the events of the same evening, the appellant was also found guilty of
assaulting Tabo Dyalivani with intent to do grievous bodily
harm, for which the
appellant was sentenced to be detained until the rising of the court. With the
leave of the trial Judge the appellant
appeals to this Court against the
sentence of death.
According/....
3.
According to the facts found by the trial court, the deceased
was killed under the following circumstances. The deceased was the 32
year old
widow of the appellant's late brother. The two-bedroomed house,in which she
lived with her nephew Tabo Dyalivani belonged
to her late husband, who had taken
the appellant with his wife and child into his house after the appellant had
been evicted from
his own house. The deceased resented the appellant's presence
in the house and had already unsuccessfully attempted to have him evicted
by the
authorities.
On the evening in question, the appellant arrived home with his
wife to find that his clothes had been thrown out of the wardrobe
in his bedroom
and
scattered /
4. scattered on the floor. The door of the wardrobe was
broken. Armed with a large weapon, described as a bayonet, which his wife
had
taken from the top of the wardrobe and handed to him, the appellant went into
the diningroom where the deceased and Tabo were
sitting. He stabbed at Tabo with
the bayonet but the latter managed to evade the blow and run out of the house.
The appellant thereupon
attacked the deceased, stabbing her six times in the
chest, abdomen, back and left hand. One of the wounds penetrated the heart,
another the right kidney. The deceased managed to run to a neighbour's house
where she collapsed. The cause of death was given as
multiple stab wounds of the
chest and abdomen.
The /
5.
The appellant admitted that he had stabbed the deceased. His
version was that when he came out of the bedroom, the deceased took a
knife from
her pocket and stabbed at him. He then saw her two brothers coming out of the
other bedroom, both armed with knives. He
took the knife from the deceased and
stabbed her with her own knife. The trial court rejected the appellant's
version. It instead
accepted Tabo's evidence that the only people present in the
diningroom were the deceased, the appellant and himself, that the deceased
was
not armed and that the appellant started attacking them the moment he entered
the diningroom.
The finding that there were extenuating
circumstances/
6. circumstances, was that of the majority of the trial
court. The majority found on the evidence of Tabo and the deceased's neighbour
that the appellant was, despite his own denial of having had anything to drink,
to some extent under the influence of liquor. Tabo's
evidence was that when the
appellant arrived at the house that evening he smelled of liquor and also walked
like a drunken man. The
neighbour's evidence was to the effect that when the
appellant came out of the house after he had stabbed the deceased he gave the
impression that he was not sober. The majority of the trial court also found
that the appellant was provoked by the fact that his
clothes had been thrown out
of the wardrobe, as an indication to him that he was
not /
7. "not wanted in the house. The minority of the trial
court found that the appellant had not proved that he was under the influence
of
liquor, nor that his clothes had been thrown out of the wardrobe.
After the trial court had found that there were extenuating circumstances,
the State proceeded to prove the following previous convictions
:-
(1)
On 10 February 1970 the
appellant was convicted of assault with intent to do grievous bodily harm for
which he was sentenced to 3
months imprisonment. The SAP 69 form states that the
victim was a 20 year old man and that the appellant used a
knife.
(2)
On 29 June 1970 the appellant was
found guilty of the theft of 2 tape-recorders and 15 rolls of wall paper from
the shop where he
was employed, for which he was sentenced to 3 months
imprison=
merit.
(3) /
8.
(3)
On 12 June 1978 the
appellant was convicted on two counts of assault with intent to do grievous
bodily harm. In respect of both counts
the victim was a 27 year old man and the
appellant used a knife. On each count the appellant was sentenced to 5 months
imprisonment,
which was totally suspended for 5 years on certain
conditions.
(4)
On 17 July 1978 the appellant
was convicted on two counts of assault with intent to do grievous bodily harm.
The respective victims
were a
23 year old woman and
an 18 year old boy. In respect of both counts the appellant used a knife. The
sentences were identical to those
imposed on 12 June 1978, namely 5 months
imprisonment on each count, wholly suspended for 5 years on the same
conditions.
(5) On 2 August 1979 the appellant was found guilty
of a contravention of
sec 14(1) of Act 17 of
1956, for which he was sentenced to 9
months
imprisonment, wholly suspended for 4 years on
certain
conditions.
Although the judgment on sentence refers also
to /
9. to the nature of the assault on the deceased, it is
clear from the rest of the judgment and from the record, that the real or
decisive
consideration in the trial Judge's decision to impose the death
sentence, despite the existence of extenuating circumstances, was
the
appellant's previous convictions.
That an accused's criminal record may be taken into account by the trial
Judge as one of the relevant factors in the exercise of his
discretion under sec
277(2) of Act 51 of 1977, is well established. It is equally well established
that once the death sentence has
been imposed in the exercise of a trial Judge's
discretion under the said subsection, the power of this Court to alter the
sentence
of the trial
Judge /
10. Judge is limited. This Court will not lightly substitute its
discretion for that of the trial Judge. It will only interfere if
the trial
Judge exercised his discretion wrongly or improperly i.e. if there is an
irregularity or misdirection or when the sentence
is "disturbingly
inappropriate". See
S v Letsolo
1970(3) SA 476(A) at 477 B and
S v
Lekaota
1978(4) SA 684(A) at 689 A-B.
In the present case the trial Judge
accepted that the appellant was 26 years of age at the time of the trial. This
means that he was
only 13 years old when he was first convicted on 10 February
1970, which seems unlikely in view of the sentence of 3 months imprisonment
which was then imposed. Be
that /
11.
that as it may; according to the trial Judge, the appellant
on that date:
"started out on a life of violence and
assaults. From that date on for the next nine years the accused embarked on
acts of violence to the extent that he was convicted five
times for assault with
intent to do grievous bodily harm, each time with a knife."
With reference to his previous convictions the
trial Judge concluded that
the appellant was "obviously
a man of violence and a danger to society and to
all
that come in his pathy.
The trial Judge considered, as he was required
to do, whether a lengthy period of imprisonment would
not have the desired
reformative effect, but found
that the appellant was not a person who could
be
rehabilitated.
In /
12. In describing the appellant's career since his first conviction
on 10 February 1970 as a "life of violence and assaults", and
in saying that for
the ensuing nine years the appellant "embarked on acts of violence" the trial
Judge, in my view, overlooked the
fact that for a continuous period of eight
years out of the nine years the appellant managed to stay out of trouble. The
first passage
in the judgment I have quoted above, conveys the impression that
between his first conviction on 10 February 1970 and the last previous
conviction on 2 August 1979 the appellant was regularly, or persistently
committing acts of violence. That is not so, as the list
of previous convictions
will show. In fact, after the
appellant /
13. appellant was first convicted of assault with intent to
do grievous bodily harm on 10 February 1970, more than eight years elapsed
before he was again convicted of an offence involving violence. The remaining
four convictions for assault with intent to do grievous
bodily harm, were all
incurred within a space of little more than a month; namely two on 12 June 1978
and the other two on 17 July
1978. With regard to these four convictions,
counsel for the appellant informed the trial Judge during his address on
sentence that
his instructions were that all four convictions arose out of the
same incident. My impression from the record is that the trial Judge
was at that
stage prepared to treat the four convictions as having arisen out of
the/
14. the same incident. There is however, no mention in the
judgment on sentence of this aspect, and it would appear from the passages
in
the judgment on sentence quoted above that the trial Judge treated the four
convictions as if arising out of four separate incidents.
Whether the four
convictions arose out of the same incident or whether they formed the subject of
four separate incidents, was obviously
an important matter which could have had
a material effect on the weight to be attached to these four convictions. If
they all arose
out of the same incident it meant that appellant was only on two
occasions before his present conviction involved in acts of violence
namely once
in 1970 and once in 1978.
If, /
15. If, after counsel's address on sentence, the trial
Judge was still not prepared to treat these four convictions as having arisen
out of the same incident, he should have obtained further information. Compare
S v Jack
1982(4) SA 736(A) at 742 F-G.
After that the only other
previous conviction incurred by the appellant until the present crime was
committed, was the one on 2 August
1979 for contravening sec 14(1) of Act 17 of
1956. This was not an offence involving violence and in regarding it as such the
trial
Judge misdirected himself.
I am furthermore of the view that in his evaluation of the appellant's
previous convictions, the trial Judge gave insufficient consideration
to
the /
16. the very light sentences which had previously been
imposed. The totally suspended sentence of 5 months imprisonment imposed in
respect of each of the last four convictions for assault with intent to do
grievous bodily harm, indicates that none of these assaults
could have been of a
serious nature. The sentence of 9 months imprisonment for contravening sec 14(1)
of Act 17 of 1956 was also
suspended. This leaves only the two unsuspended short
terms of imprisonment of 3 months each imposed during 1970. In the 13 years
since his first conviction until the commission of the present crime, the
appellant was therefore in prison for a maximum period
of 6 months only. That
was in 1970 when he was still very young and immature.
In /
17.
In my view, therefore, the appellant's criminal
record does not justify the conclusion reached by the trial Judge, that the
appellant
in 1970 embarked on a "life of violence and assaults", nor that he was
beyond reform. In arriving at these findings the trial Judge
misdirected himself
in the respects I have set out above.
For the reasons I have given, the
sentence of death should be set aside. Under all the circumstances of the case I
am of the view
that justice would be done if a sentence of 12 years imprisonment
is imposed.
In the result the appeal succeeds. The
sentence /
18. sentence of death is set aside and it is ordered that
appellant be imprisoned for 12 years.
W. VIVIER. AJA.
RABIE CJ.
MILLER JA.
Concur. VAN HEERDEN JA.
GALGUT AJA.